Brawijaya Law Journalhttp://lawjournal.ub.ac.id/index.php/law
<p><strong>Journal of Legal Studies</strong></p><p>Brawijaya Law Journal (BLJ) is an international journal established by Law Faculty of Brawijaya University. It has 1 volume with 2 issues per year. BLJ is an open access, double peer-reviewed e-journal which aims to offer an international scientific platform for national as well as cross-border legal research. The materials published include major academic papers dealing critically with various aspects and field of laws as well as shorter papers such as recently published book review and notes on topical issues of law.The goal of Brawijaya Law Journal is to bring the highest quality research to the widest possible audience.</p><p>The journal addresses various of legal issues covers both public and private law ranging from constitutional and administrative law, criminal law as well as international laws to various legal studies such as indigenous studies, economic laws, business laws, IT laws, natural resources laws and many others. <strong>In each issue the journal sets up specific topic to be addressed.</strong></p><p>Nationally Accredited by the Ministry of Research, Technology, and Higher Education of the Republic of Indonesia (2017-2022)</p><p>Decree No. 32a/E/KPT/2017 Dated 26th April 2017</p><p>Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through <em>www.lawjournal.ub.ac.id</em></p><p> </p><p> </p>Faculty of Law, Universitas Brawijayaen-USBrawijaya Law Journal2356-4512<p><img style="border-width: 0;" src="https://i.creativecommons.org/l/by-nc/4.0/88x31.png" alt="Creative Commons License" /></p><p><span>This journal embed or display simple machine-readable CC licensing information. This<span> journal allow reuse and remixing of content in accordance with a Creative Commons license, <a href="http://creativecommons.org/licenses/by/4.0/" rel="license">Creative Commons Attribution 4.0 International License</a> (CC BY NC)</span></span></p>

JUDICIAL DECISION AND RETHINKING THE CONSTITUTIONAL PRINCIPLES CONCERNING TREATY MAKING POWER AND PROCESS OF THAILANDhttp://lawjournal.ub.ac.id/index.php/law/article/view/68
<p><em>This paper aims to examine the treaty making power and process in recent constitutional provisions reforms in Thailand. It aims to analyze whether the constitutional provision has affected the treaty-making crisis. This study relied on the theory of the sovereignty of state exercised by the executive branch in compliance with the treaty making power concept, the separation of powers, and the checks and balances doctrine. The findings revealed that Thailand’s constitutional amendment related to treaty making processes, proposing a negotiation framework approved by the legislative branch or public participation during a prior negotiation period, is not in compliance with the treaty making concept and state practices of foreign countries. However, Thailand has already reformed the constitutional provision. The implications are that there must be an amendment to the Constitution defining the processes and characteristics of treaties that shall be approved by the legislative branch</em></p>Kiarttiphorn Umpai
Copyright (c) 2017 Kiarttiphorn Umpai
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2017-03-312017-03-314112810.21776/ub.blj.2017.004.01.01STATE LIABILITY FOR VIOLATION OF CONSTITUTIONAL RIGHTS AGAINST INDIGENOUS PEOPLE IN FREEDOM OF RELIGION AND BELIEFhttp://lawjournal.ub.ac.id/index.php/law/article/view/72
<p><em>The government is perceived as the main perpetrator on violations of freedom of religion and belief in Indonesia. As the state organizer, the government frequently issues discriminatory regulations and policies and tend to cause intolerance to minority religions and beliefs, particularly to indigenous peoples. While freedom of religion or belief is a constitutional rights that cannot be reduced and is guaranteed universally in constitution and laws, the law provides limitation that causes ambiguity in the fulfillment of the rights of religion and belief. In addition, the government mindset still adheres to the term of "official religion" and "non-official religion" in any policy-making, causing adherents of minority religions and beliefs to be considered as cultural heritage to be preserved. This creates injustice, discrimination, intimidation and intolerance in rights fulfillment in state and society life. This paper discusses the existence of the guarantee of freedom of religion and belief for indigenous people and state liability for violations of freedom of religion and belief. This research used normative juridical method with statute approach and conceptual approach.</em></p>Zaka Firma AdityaSholahuddin Al-Fatih
Copyright (c) 2017 Zaka Firma Aditya, Sholahuddin Al-Fatih
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2017-03-312017-03-3141295810.21776/ub.blj.2017.004.01.02THE ANALYSIS OF ISLAMIC ECONOMY IN THE CONSTITUTION OF INDONESIAhttp://lawjournal.ub.ac.id/index.php/law/article/view/74
<p>The development of Islamic Economy has been flourishing in the life of Indonesian people and brings impacts to several aspects of life, including in the field of law serving as the juridical basis. Indonesia is not an Islamic country. Instead, it is a constitutional country that believes in one Supreme God and protects all people to practice their religions. The sociological condition of the majority affects the formulation of law and constributes to the positive law which includes in it the issue on constitutional law.</p><p>This paper analyzes the flexibility of Indonesian’s constitution in adopting and providing spaces for Islamic Economy as well as becoming the foundation for Islamic economy to fulfill the need of the society. Firstly, the analysis was conducted using theoretical approach viewed from the persepctive of the correlation between the state and religion, and the theory on legal pluralism. Further, the 1945 Constitution of State of Republic of Indonesia (Undang-Undang Dasar Negara Republik Indonesia/UUD NRI 1945), was analyzed to trace the basis of Islamic economy and to develop Islamic economy based on the Indonesian’s constitution.</p>Siti HamidahMochammad BakriAbdul Rahmad BudionoBambang Winarno
Copyright (c) 2017 Siti Hamidah, Mochammad Bakri, Abdul Rahmad Budiono, Bambang Winarno
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2017-03-312017-03-3141597610.21776/ub.blj.2017.004.01.03UNRAVELING THE RIGHT TO LIFE IN CASES OF DEATHS RESULTING FROM THE ACTIONS OF STATE AGENTS UNDER THE SYSTEM OF ECHRhttp://lawjournal.ub.ac.id/index.php/law/article/view/78
<p>it shall be done in a certain threshold of necessity. In particular when the taken of life is done by the agents of states. This article examines the interpretation of article 2 by the European Court of Human Rights, especially when it is read in conjunction with state’s positive obligations under article 1. The discussion will proceed in three sections: first, the review of the evolvement of the procedural requirements of article 2 in cases of deaths arising from the acts of state agents. Second, is the examination of whether the procedural requirements of article 2 can be used as a mean in securing the adequate protection of the right to life from arbitrary killing by the use of lethal force. Third, is an analysis of an effective legal system as a procedural requirement of article 2 in the case of homicide caused by the negligence of the authorities. Finally, this essay will conclude by examining the Court’s position in its endeavours to achieve an appropriate balance between not over-burdening its Member States and securing the adequate protection of the right to life.</p>Prischa Listiningrum
Copyright (c) 2017 Prischa Listiningrum
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2017-03-312017-03-3141779410.21776/ub.blj.2017.004.01.04PHILOSOPHICAL VALIDITY, THEORETICAL, NORMATIVE AND EMPIRICAL PARADIGM OF GENERAL PRINCIPLES OF GOOD GOVERNANCE (AUPB) AS A REVIEW OF PRESIDENTIAL IMPEACHMENThttp://lawjournal.ub.ac.id/index.php/law/article/view/80
Philosophical validity showed of the Principles of Good Governance (AUPB) as A review to Presidential impeachment, is a principle of AUPB that contains ethical normative values used as the foundation of good governance, clean and respectable, moreover to complement the shortcomings and ambiguities in law. Technically, the application of AUPB by the judges of the Constitutional Court (MK-RI) can be approached through induction and deduction legal reasoning. The method of implementing AUPB by the judges of the Constitutional Court (MK-RI) is accomplished by deductive at first, meaning that the special rules is focused more to the certain field of law, then these are deducted based on its basic rules and deducted again into the rules of substantive, and deducted again into the rules of cases. After that, it starts to applicate the rules of case based on the concrete case by the judge, because of the nature of the judges of the Constitutional Court (MK-RI) is <em>kholifah fil'ardi</em> as the representative of God on earth to uphold the law and justice. While theoretically AUPB is valid, the judge ius curia Novit as a verdict maker to perform legal discovery (<em>rechtsvinding</em>). Empirically AUPB is valid, it can be seen from the cases of impeachment against the President of the United States William Jefferson Clinton, on suspicion of "abominably act" (<em>misdemeanors</em>). Additionally, AUPB empirically has been tested through jurisprudence since Amtenarenwet 1929 officially applied on March 1, 1933. <em>Centrale Raad van Beroep</em>, in his verdict on June 22, 1933, and the jurisprudence verdict of Hoge Raad on November 13, 1936, and the jurisprudence verdict of Hoge Raad 1919. While the normative validity is based on the leading legal doctrine, that AUPB is positioned as the unwritten laws that must be obeyed by the government, and AUPB considered as a part of positive law. Moreover, in Indonesia AUPB incarnates in various legislations even though his name is remained as principal.Nadir NadirSoedarsono SoedarsonoJazim HamidiMuchamad Ali Syafaat
Copyright (c) 2017 Nadir Nadir, Soedarsono Soedarsono, Jazim Hamidi, Muchamad Ali Syafaat
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2017-03-312017-03-31419511610.21776/ub.blj.2017.004.01.05MODEL REGULATION FOR DATA PRIVACY IN THE APPLICATION OF BIOMETRIC SMART CARDhttp://lawjournal.ub.ac.id/index.php/law/article/view/81
<p>This article discusses the extent to which the use of biometric smart card as a tool to exercise the identification has been increasingly utilized due to its advantages, such as ability to achieve a high level of accuracy, the system cannot be easily duplicated as well as high level of security, since it involves biological characteristics like fingerprints, iris and DNA.</p><p>Notwithstanding the foregoing,<strong> </strong>the use of this technology has raised many concerns with regard to the need of privacy data protection. It is due to the fact that biometrics technology as a powerful identifier brings along personal information that can be traced from different sources to be linked together, and also the ability of third parties to access this data in identifiable form and link to other informations and used this information for secondary uses without the consent of data subject.</p><p>Data privacy is considered as fundamental human rights and has been regulated in a number of international instruments as well as regional instruments and has been incorporated into more than 100 national laws. Countries have now recognized data privacy either as an explicit constitutional rights, or in the form of comprehensive data privacy law.</p>This article will explore data privacy model regulation which is intended to regulate and protect data privacy. This regulatory model combining several approaches in managing data privacy, especially in using biometric smardcard. Firstly, through laws that enforces the principles and international standards. Secondly, through the market approach (market-based solution) which is derived through industry associations to help protect consumer data privacy by applying privacy policy in the form of a statement that the industry will protect consumers' privacy by implementing fair information principles. Third, through technological approach such as PET's (privacy enchasing technology), i.e the techniques for anonymous and pseudo-anonymous payment, communication, and web access. Fourthly, through corporate privacy rules.Sinta Dewi
Copyright (c) 2017 Sinta Dewi
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2017-03-312017-03-314111712810.21776/ub.blj.2017.004.01.06JURIDICAL IMPLICATIONS OF THE LEGAL NORM VOID OF INTERFAITH MARRIAGES IN INDONESIAhttp://lawjournal.ub.ac.id/index.php/law/article/view/82
<p>Legal void of interfaith marriages in Indonesia to date has not offered legal certainty and sense of fairness to couples of differing religions. Particularly, their rights to form a family and to freedom of religion are unprotected; whereas those rights are guaranteed by the 1945 Constitution of the Republic of Indonesia. Furthermore, the Constitutional Court’s ruling had rejected Judicial Review on Article 2 section 1 of Law No. 1 of 1974 against the 1945 Constitution of the Republic of Indonesia. The consideration provided by the Bogor District Court regarding the rejection was that the judge’s interpretation of article 2 section 1, yielded the assertion that marrying couples should have been of the same faith. The judge also took into consideration the religious values embraced by the prospective applicant who happened to be a Catholic widow while the prospective groom was a Muslim. A similar consideration was made by the Constitutional Court where in, among others, it was stated that the constitutional rights of marriage entailed the obligation to respect the constitutional rights of other people. Therefore, to avoid any conflicts in the implementation of those constitutional rights, it is necessary to have a regulation on the implementation of constitutional rights conducted by the state.</p>Consequently, the juridical implications of interfaith marriage legal norm void give rise to the judges’ differing interpretations which are unfavorable to interfaith couples. The validity of these marriages cannot be accomplished, resulting in the marriages to be deemed invalid, implicating the status and position of women and children as well as heritance issues.Kadek Wiwik IndrayantiSuhariningsih SuhariningsihMasruchin Ruba’iNurini Aprilianda
Copyright (c) 2017 Kadek Wiwik Indrayanti
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2017-03-312017-03-314112914310.21776/ub.blj.2017.004.01.07